26:0865(102)CA - HHS, SSA, and AFGE -- 1987 FLRAdec CA

[ v26 p865 ] 26:0865(102)CA
The decision of the Authority follows:

26 FLRA No. 102
DEPARTMENT OF HEALTH AND
HUMAN SERVICES, SOCIAL
SECURITY ADMINISTRATION
Respondent
and
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
AFL-CIO
Charging Party
Case No. 3-CA-50448
DECISION AND ORDER /1/
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions
to the attached Administrative Law Judge's Decision filed by the
Respondent, Department of Health and Human Services, Social Security
Administration. The issue is whether the unilateral implementation of
an "EEO Early Settlement Demonstration Project" (ESDP) by the Respondent
was a unilateral change in conditions of employment of unit employees
and therefore violated section 7116(a)(1) and (5) of the Federal
Labor-Management Relations Statute (the Statute). The Judge found a
violation based on his conclusion that the ESDP was a condition of
employment, rejecting various defenses of the Respondent.
II. Background
As noted in detail by the Judge, (pp. 2-3) the ESDP was to be an
attempt to resolve EEO complaints prior to invocation of Social Security
Administration's (SSA) formal EEO investigatory procedures. It was a
pilot project which implemented for the first time a formally structured
settlement procedure prior to formal investigation of an employee's EEO
complaint.
The project was presented to the Union by letter dated December 20,
1984, "for informational purposes only,". The Union requested
bargaining, which was declined by the SSA. SSA asserted that the ESDP
did not conflict with the parties' collective bargaining agreement
(which provided, among other things, that employees have the option of
using the negotiated grievance procedure or the Agency EEO procedure,
but not both) because it affected only the employees electing to process
an EEO complaint under the Agency EEO procedures, and in any event, the
impact of the new program was de minimis. SSA also presented revisions
to the plan, outlined at p. 4 of the ALJ's Decision. Along with the
revisions, transmitted by letter of March 6, 1985, was notice of an
implementation date of March 25, 1985, and a request for "substantive
proposals or comments" as soon as possible.
On March 15, 1985, the Union submitted proposed ground rules. On the
same day, the Respondent told the Union's representative that it would
not negotiate over the project. Thereafter, without further notice or
bargaining, the pilot project was revised again and implemented in July,
1985.
The collective bargaining agreement provides for reasonable notice of
a change affecting conditions of employment, and for the Union to submit
written proposals within a reasonable period after notice of the
proposed charge, to be followed by bargaining within ten working days.
III. Administrative Law Judge's Decision
The Judge found that the ESDP and the achievement of its goals are
terms and conditions of employment within the meaning of the Statute.
He noted that the project was an attempt to get more voluntary
settlements of EEO disputes when employees elect the agency EEO
procedure, and that it is a mandatory settlement program if the Agency
EEO procedure is elected.
Although the ESDP was part of the formal EEO complaint process,
it was not mandated by any EEOC regulations nor was it ordered or
required by any EEOC or the Civil Rights Act. Thus the
institution of the ESDP was the type of change in the EEO program
and its method of enforcement, that required notice to AFGE so
that it could bargain about the substance of the change, as well
as its impact and implementation.
The Judge also rejected the Respondent's defenses that (1) because
the project is a program of the Agency, the Department of Health and
Human Services, it did not have the authority to bargain over the
substance of the program; (2) the Union waived its right to bargain and
(3) the ESDP would have only a de minimis effect on unit employees and
thus would be nonnegotiable. Therefore, the Judge found that the
unilateral implementation of the ESDP, without negotiating the
substance, impact, and implementation of the project, violated section
7116(a)(1) and (5) of the Statute as alleged. As a remedy, he
recommended that the Respondent be required to cease and desist from the
unfair labor practices as well as restoring the status quo ante by
repealing the ESDP and bargaining about any new settlement programs, the
appropriate procedures to be observed in implementating any such new
programs and over appropriate arrangements for any employees adversely
affected.
IV. Positions of the Parties
In its exceptions, the Respondent reiterates its main argument that
the ESDP is not a condition of employment within the meaning of the
Statute, but rather is part of a statutory procedure covered by the
Civil Rights Act. It also argues again that even if the ESDP is a term
and condition of employment subject to the duty to bargain, the program
was required by higher agency authority, and that the Union waived any
right to bargain by not making a timely proposal. Further, the
Respondent argues that it should not be ordered to rescind the program
because it is "solely under the control" of the Agency, and the
Respondent has not authority to repeal it. Finally, as the Respondent
asserts that it was directed to implement the project by the Agency, the
Respondent is restricted to bargaining on the impact and implementation
of the ESDP if the Authority finds a duty to bargain.
The General Counsel filed no exceptions.
V. Analysis and Conclusions
The basic question is whether the ESDP was a condition of employment
within the meaning of the Statute. In agreement with the Judge, we
conclude that it was. Just as we found an agency administrative
grievance procedure to be a condition of employment, /2/ the Early
Settlement Demonstration Project also was a personnel matter or practice
established by rule or reulgation -- not the EEOC or the Civil Rights
Act -- for resolving disputes affecting employee working conditions.
Thus, the ESDP falls within the definition of conditions of employment
in section 7103(a)(14) of the Statute. /3/ As noted by the Judge this
demonstration project was not mandated by any EEO regulation, nor was it
ordered or required by the EEOC or the Civil Rights Act. Thus this was
not part of a statutory procedure mandated by the Civil Rights Act.
This differs from some EEO matters, where a Union would have no rights.
For example, we have found that an exclusive representative does not
have the right to be present during any stages of presentation of an EEO
complaint unless the exclusive representative has been chosen by the
complainant as his representative. U.S. Government Printing Office, 23
FLRA No. 6 (1986).
Having found that the ESDP was a condition of employment, we reject
the defenses raised by the Respondent for the reasons expressed by the
Judge.
ORDER
The Department of Health and Human Services, Social Security
Administration shall:
1. Cease and desist from:
(a) Failing and refusing to bargain with American Federation of
Government Employees, AFL-CIO, the collective bargaining representative
of its employees, concerning any new settlement projects in the EEO
program, the procedures to be observed in implementing any such new
program, and appropriate arrangements for any employees adversely
affectedly by any such new program.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Upon request of American Federation of Government Employees,
AFL-CIO, the collective bargaining representative of its employees,
repeal the EEO Early Settlement Demonstration Project in the
Baltimore-Washington area and bargain with American Federation of
Government Employees, AFL-CIO, concerning appropriate arrangements for
any employees who had been adversely affected by the institution of the
EEO Early Settlement Demonstration Project.
(b) Upon request bargain with American Federation of Government
Employees, AFL-CIO, about any new settlement program in the EEO program,
the procedures to be observed in implementing any such new programs, and
appropriate arrangements for any employees adversely affected by any
such new programs.
(c) Post in its Baltimore-Washington area facilities copies of the
attached Notice on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms, they shall be signed by the
Commissioner of Social Security, and shall be posted and maintained for
60 consecutive days thereafter, in conspicuous places, including all
bulletin boards and other places where notices to employees are
customarily posted. Reasonable steps shall be taken to ensure that such
Notices are not altered, defaced, or covered by any other materials.
(d) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region III, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
order, as to what steps have been taken to comply herewith.
Issued, Washington, D.C., April 30, 1987.
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Separate Opinion of Chairman Calhoun
I believe that the specific procedures to be used in the
investigation and resolution of formal complaints of discrimination
filed under 29 C.F.R. part 1613 are outside an agency's duty to bargain
under the Federal Service Labor-Management Relations Statute. Therefore
I believe the Complaint should be dismissed.
In providing avenues for adjudication of claims of discrimination
under the various Federal Civil Rights Statutes, Congress has created
two distinct processes of dispute resolution. With respect to one --
the negotiated grievance procedure -- the role of the Union is primary
and fundamental. Under 5 U.S.C. Section 7121, Unions are given wide
latitude to negotiate grievance procedures which provide for binding
resolution of disputes, including matters which may also be litigable
under formal EEO complaint procedures. On the other hand, the Statute
also makes clear that once an employee elects to exercise the option of
invoking a statutory or regulatory appeal process in lieu of the
negotiated procedures, that election is binding. See 5 U.S.C. Section
7121(d). Once the employee has so elected, the role, rights, and
responsibilities of the Union as an entity differ markedly. Compare
SSA, Office of Hearings and Appeals, 25 FLRA No. 43 (1987) (Union has a
right to be "present", and hence notified of a grievance even when the
Union is not the designated representative); and U.S. Government
Printing Office, 23 FLRA No. 6 (1986) (settlement of EEO complaint not a
"formal discussion" requiring Union presence). The specific procedures
used to resolve formal complaints of discrimination are a "condition of
employment" to bargaining unit employees only to the extent that they
choose to make them such. To me, that distinguishes the instant case
from the line of Authority precedent cited in the Judge's decision, a
line of precedent which I do not contend should be overturned.
The cases cited in the text on page 6 of the Judge's decision
considered Union participation in the development or implementation of
affirmative action plans or objectives. The effect of such actions by
an Agency has universal impact on bargaining unit employees and this
effect is not tempered by an election by the employee(s) to participate
or not participate in the program. Accordingly, I do not find them
dispositive of the instant case.
More on point, in my view, is Portsmouth Naval Shipyard and
Department of the Navy (Washington, D.C.), 23 FLRA No. 68 (1986), a
decision which is relied on by the Judge and the majority. In that case
we found that denial of access to an agency's administrative grievance
procedure solely on the basis of an employee's status as a member of a
bargaining unit would reasonably be expected to interfere, restrain, or
coerce employees from engaging in collective bargaining in violation of
5 U.S.C. Section 7116(a)(1). In the instant case there is no evidence
that implementation of the ESDP procedure discriminates in any way
between represented and unrepresented employees. Represented employees
are not restricted in their access to the EEO complaint resolution
procedure. Again I stress the fact that the procedure does not come
into play until after a formal EEO complaint is filed and a binding
election to utilize the EEO process and forego the Union's negotiated
grievance procedure has been made.
While I agree with the Judge's factual conclusion that the ESDP is
not mandated by the Equal Employment Opportunity Commission regulations
concerning complaint processing, I am persuaded that to the extent such
a procedure is permissible under those regulations, it grows out of them
and should be deemed part of a statutory appeal process unrelated to the
Union's role as exclusive representative. Accordingly, in my view, it
is not the type of "condition of employment" over which Congress
envisioned collective bargaining to take place. /4/
Issued, Washingtion, D.C., April 30, 1987
/s/ Jerry L. Calhoun, Chairman
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY AND TO
EFFECTUATE
THE POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE
WE NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail and refuse to bargain with American Federation of
Government Employees, AFL-CIO, the collective bargaining representative
of our employees, concerning any new settlement projects in the EEO
program, concerning the procedures to be observed in implementing any
such new program and over appropriate arrangements for any employees
adversely affectedly by any such new program.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL upon request of American Federation of Government Employees,
AFL-CIO, the collective bargaining representative of our employees,
repeal the EEO Early Settlement Demonstration Project in the
Baltimore-Washington area and bargain with American Federation of
Government Employees, AFL-CIO, concerning appropriate arrangements for
any employees who had been adversely affected by the institution of the
"EEO Early Settlement Demonstration Project."
WE WILL upon request bargain with American Federation of Government
Employees, AFL-CIO, about any new settlement programs in the EEO
program, concerning the procedures to be observed in implementing any
such new programs and over appropriate arrangements for any employees
adversely affected by any such new programs.
. . . (Agency or Activity)
Dated: . . . By: . . . (Signature)
This Notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with any of its provisions, they may communicate directly with the
Regional Director, Region III of the Federal Labor Relations Authority,
whose address is 1111 18th Street, N.W., Washington, D.C. 20033-0758,
and whose telephone number is: (202) 653-8500.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 3-CA-50448
DEPARTMENT OF HEALTH AND HUMAN SERVICES,
SOCIAL SECURITY ADMINISTRATION
Respondent
and
AMERICAN FEDERAL OF GOVERNMENT
EMPLOYEES, AFL-CIO
Charging Party
Irving Becker, Esquire
For the Respondent
Barry Nelson
For the Charging Party
Carolyn J. Dixon, Esquire
For the General Counsel of FLRA
Before: SAMUEL A. CHAITOVITZ
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
Section 7101, et. seq., 92 Stat. 1191 (hereinafter referred to as the
Statute), and the Rules and Regulations of the Federal Labor Relations
Authority (FLRA), 5 C.F.R. Chapter XIV, Section 2410 et. seq.
Pursuant to a charge filed on August 1, 1985 by American Federation
of Government Employees, AFL-CIO, hereinafter called AFGE and the Union,
against Department of Health and Human Services, Social Security
Administration, hereinafter called SSA, the General Counsel of the FLRA,
by the Director of Region III, issued a Complaint and Notice of Hearing
on January 31, 1986 alleging that SSA violated Sections 7116(a)(1) and
(5) of the Statute by implementing an "EEO Early Settlement
Demonstration Project" /5/ and by refusing to bargain over the
substance, impact and procedures for implementation of the ESDP. SSA
filed an Answer denying that it had violated the Statute.
A hearing was conducted before the undersigned in Baltimore,
Maryland. SSA, AFGE and General Counsel of the FLRA were represented
and afforded full opportunity to be heard, to examine and cross-examine
witnesses, to introduce evidence and to argue orally. Briefs were filed
and have been fully considered.
Based on the entire record in this matter, my observation of the
witnesses and their demeanor, and my evaluation of the record I make the
following:
FINDINGS of FACT
At all times material herein AFGE has been the collective bargaining
representatives for a nationwide unit of SSA employees. Further, at all
material times SSA and AFGE have been parties to a collective bargaining
agreement covering this nationwide unit.
By letter dated December 20, 1984, SSA informed the Union of a pilot
project entitled "EEO Early Settlement Demonstration Project." This
pilot project is an attempt to resolve employee EEO complaints prior to
the invocation of SSA's formal EEO investigatory procedures. The pilot
project implemented for the first time a formally structured settlement
procedure prior to formal investigation of an employee's EEO complaint.
Under the ESDP, all employee EEO complaints, except those alleging
failure to hire, failure to promote or discriminatory discharge, would
be included in this mandatory settlement procedure. An official called
a convenor would be appointed to gather certain information considered
relevant to the allegations in the complaint. The convenor prepares a
summary of this information and presents it at a fact finding conference
to the employee complainant and management official representing SSA.
The employee complainant may have a representative present at this fact
finding conference but the representative's participation is limited
solely to advising the complainant. The representative could not argue,
present or advance the employee complainant's case to either management
official. If agreement is reached by the parties, a no-fault settlement
is executed. If no agreement is reached, the convenor completes a
formal summary of the information gathered during the process and places
it in the investigative file. Absent settlement under this new
procedure, the convenor reviews the file and determines if it is
complete, in order for a decision to issue on the merits of the
Complaint. If the convenor determines the file is complete, the
convenor prepares a recommendation on the complaint, called a Proposed
Disposition, and forwards the recommendation to agency officials for
further action. If the convenor determines that a Proposed Disposition
is not warranted or if the official rejects the convenor's
recommendation, the complaint will be assigned to an investigator for
completion of the investigation and subsequent processing in accordance
with EEOC and SSA regulations. /6/ At no time during the process is the
complainant or his representative allowed to review the investigative
file developed by the convenor.
A copy of this proposed pilot project was enclosed with SSA's letter
to AFGE dated December 20, 1984. SSA specifically stated in its letter
to AFGE that a copy of the ESDP was being provided to AFGE "for
informational purposes only." SSA further stated that the ESDP does not
conflict with the parties' collective bargaining agreement as it affects
only those employees electing to process an EEO complaint through the
SSA's EEO procedures and not those employees electing to process an EEO
complaint through the negotiated grievance procedure. /7/ Union
bargaining proposals were neither requested nor invited.
AFGE responded in a letter dated December 27, 1984. It requested
bargaining and designated John Gage, President of AFGE Local 1923 as its
negotiator. Thereafter, in a letter dated March 6, 1985, SSA replied to
the AFGE's request and stated that the latter's bargaining demand was
improper. SSA asserted that the ESDP did not conflict with the
collective bargaining agreement because it affected only those employees
electing to process an EEO complaint under the agency's EEO procedures
and the impact of the new program was "de minimis". SSA also enclosed a
revised version of the ESDP which changed the original version in
several respects. Under the revised version, all employee EEO
complaints filed under the agency's EEO complaint procedures in the
Baltimore-Washington area would be subject to this mandatory settlement
procedure without exception. In addition, the revised version of the
ESDP provided that the convenor alone would decide whether, based on his
preliminary inquiry, the employee's EEO complaint would be referred for
further investigation or treated in the pilot project. A section
defining the powers of the convenor to examine witnesses and prohibit
cross-examination of witnesses was also added.
SSA's letter of March 6, 1985, to the Union enclosing the revised
version of the pilot project advised of a March 25, 1985, implementation
date. SSA closed its March 6, 1985, letter with a request for
"substantive proposals or comments" as soon as possible.
On March 15, 1985, before the proposed implmentation date, the AFGE
submitted a one-page proposed Memo of Understanding of basic ground
rules and indicated its availability to commence negotiations
immediately. However, that same day Nelson Sabatini, SSA's Associate
Commissioner of Office of Management, Budget and Assessment, told AFGE
representative John Gage that SSA would not negotiate over the EEO pilot
project.
Thereafter, without any further notice or bargaining with the Union,
the subject pilot project was again revised by SSA and was implemented
in July 1985.
Article 4 Section 1 of the collective bargaining agreement provides:
"Section 1 -- General
"The Administration will provide the Union reasonable advance
notice prior to implementation of changes affecting conditions of
employment subject to bargaining under 5 USC 71. Upon notice from
the Administration of a proposed change, the designated union
representative will notify the designated management
representative of its desire to consult and/or negotiate on the
change.
"The Union will submit written proposals if applicable within a
reasonable period after notice of the proposed change. Bargaining
will begin as soon as possible, and will not exceed ten (10)
working days. All issues not resolved at that time may be
referred to the Federal Service Impasses Panel for resolution
under its rules."
Discussion and Conclusions of Law
General Counsel of the FLRA contends that SSA violated Sections
7116(a)(1) and (5) of the Statute by implementing the EEO Early
Settlement Demonstration Project without prior bargaining with AFGE over
the substance, impact and implementation of the project.
SSA contends it did not violate the Statute because it has no duty to
bargain about any aspect of the ESDP because it is not a term and
condition of employment as defined by the Statute, SSA did not submit
substantive proposals as required by its collective bargaining
agreement, and the ESDP was not initiated by SSA on its own discretion
but rather by direction of Department of Health and Human Services
(DHHS).
Title VII of the Civil Rights Act of 1964, was amended in 1972 to
apply to Federal Civilian employement. /8/ As the general administrator
of the Federal EEO Program, the Equal Employment Opportunity Commission
(EEOC) has issued a set of comprehensive regulations concerning the
processing of EEO complaints by each Federal executive branch agency.
/9/ Pursuant to the EEOC regulations, each agency is required to issue
regulations establishing an internal complaint processing system
consistent with EEOC regulations. /10/
Pursuant to section 7121 of the Statute, negotiated grievance
procedures may cover matters otherwise covered by the statutory EEO
procedure. Thus, unless specifically excluded as provided for under
section 7121(a)(2) of the Statute, section 7121(d) of the Statute
provides that an employee covered by a negotiated grievance procedure
can pursue a discrimination complaint under either an agency's internal
EEO procedure or the negotiated grievance procedure, but not both.
The FLRA has held that matters related to discrimination in
employment are terms and conditions of employment and hence negotiable
under Section 7117 of the Statute. American Federation of Government
Employees, AFL-CIO and Air Force Logistics, 2 FLRA 604 (1980). /11/ In
this case the FLRA held that two union proposals requiring the
establishment of plans and programs to attain EEO objectives and to
establish guidelines for affirmative action plans were negotiable. The
FLRA held that Congress intended to include matters related to
discrimination in employment within the duty to bargain. Further the
FLRA held in Library of Congress, 9 FLRA 421 (1982) and Library of
Congress, 9 FLRA 427 (1982) that an agency violated the Statute when it
unilaterally changed affirmative action plans without first affording an
exclusive collective bargaining representative an opportunity to bargain
over the changes.
The cases relied upon by SSA are inapposite. They deal with whether
the EEOC procedure, or other statutory appeals, are grievances within
the meaning of Section 7114(a)(2)(A) of the Statute. /12/ No contention
is made herein that the ESDP is a grievance within the meaning of the
Statute. Rather it is alleged, and I find, that the EEO program and the
achievement of its goals are terms and conditions of employment and are
negotiable, within its statutory limitations, and thus, so are the
discretionary programs for accomplishing the aims of the EEO program.
In this regard I note the FLRA, in an analogous situation held that an
agency's administrative grievance procedure is a term and condition of
employment. Portsmouth Naval Shipyard and Department of the Navy, 23
FLRA No. 68 (1986) at page 6.
In the subject case the changes which SSA implemented involved
establishing, on an experimental basis, a settlement program in an
attempt to get more voluntary settlements of EEO disputes when employees
use the SSA EEO procedure, as distinguished from the contractual
grievance procedure. Thus ESDP is a mandatory settlement program in
which the employee must participate if he chooses to pursue SSA's
internal EEO complaint procedures. Although the ESDP was part of the
formal EEO complaint process it was not mandated by any EEOC regulations
nor was it ordered or required by the EEOC or the Civil Rights Act.
Thus the institution of the ESDP was the of type change in the EEO
program and its method of enforcement, that required notice to AFGE so
that it could bargain about the substance of the change, as well as its
impact and implementation.
SSA contends that it could not bargain about the institution of the
ESDP because the ESDP is a DHHS program that SSA was ordered to
institute by DHHS. Accordingly, SSA contends it did not have the
authority to bargain about the substance of the program. SSA's
contention is rejected because it is not supported by the record. The
record does not establish that DHHS forebade SSA from bargaining about
the establishment of the ESDP. In this regard I note that SSA's own
witness testified that the Health Care Finance Administration did not
institute the ESDP because "they have a question regarding
negotiations." The evidence submitted does not establish that this
otherwise bargainable subject was somehow exempted from this obligation
by DHHS having ordered it or forbidden bargaining at the local level,
nor was there any contention or proof that there was any compelling need
for any such exemption. Thus, absent evidence to the contrary, it must
be assumed that SSA, a component of DHHS, could bargain about the
substance of the ESDP. See Department of the Interior, Water and Power
Resources Service, Grand Coulee Project, 9 FLRA 385 (1982) and
Department of Health and Human Services, Office of the Secretary,
Headquarters, 20 FLRA 175 (1985).
Finally I find SSA's contention that AFGE forfeited its bargaining
rights by not submitting proposals after being requested to do so to be
without merit. In this regard I note that SSA's first notification to
AFGE of the ESDP was for informational purposes only. Further, SSA
stated that AFGE's bargaining demand was improper and SSA's agent
advised an AFGE official on March 15, 1985 that SSA would not bargain
over the ESDP. In its March 6, 1985 letter SSA stated that "We do not
feel your request to bargain on the subject pilot project is proper . .
. the project does not conflict with terms of the existing agreement . .
. ." The letter then pointed out some new changes in the ESDP and stated
"At this time we plan to implement the project on March 25, 1985. If
you have any substantive proposals or comments, we would like to receive
them as soon as possible." Thus SSA clearly stated the ESDP was not
negotiable and it was to be implemented on March 25. The reuqest for
"substantive proposals", in this context, was clearly not an invitation
to bargain. On the contrary, SSA specifically said that it was not a
bargainable matter. Its invitation for "substantive proposals", was
just that, an invitation for proposals, which SSA was free to consider
and either reject or accept, but not bargain about. It was in effect an
invitation for suggestions, not negotiations. In these circumstances I
need not determine whether Article 4 Section 1 requires AFGE to make
substantive proposals in writing, concerning mid-term bargaining. SSA
made its position clear that the ESDP was not bargainable and at that
time it violated the Statute. AFGE was not required to engage in some
empty and meaningless act in order to perfect its right. See U.S.
Customs Service, 18 FLRA 263 (1985). In this regard I note further that
SSA kept changing the ESDP until it was actually put into effect.
Finally SSA urges that the ESDP would only have a de minimis effect
on the unit employees and therefore is nonnegotiable. I reject this
defense because the de minimis considerations are not defenses when the
change in question, like the ESDP, involves a change which itself is
substantively bargainable. See U.S. Army Reserve Components, Personnel
and Administrative Center, St. Louis, Missouri, 19 FLRA 290 (1985).
/13/
In light of the foregoing I conclude SSA violated Sections 7116(a)(1)
and (5) of the Statute by unilaterally instituting the ESDP and refusing
to bargain with AFGE concerning the substantive terms of the ESDP,
concerning the procedures to be observed for implementing the ESDP and
concerning appropriate arrangements for any employees adversely affected
by the change. I conclude that a status quo remedy for SSA's violation
of the Statute, at the request of AFGE, is most appropriate for putting
the parties in a position to meaningfully bargain about the ESDP. Cf.
Long Beach Naval Shipyard, Long Beach, California, 17 FLRA 511 (1985).
Having found and concluded that SSA violated Sections 7116(a)(1) and
(5) of the Statute, I recommend that the Authority issue the following:
ORDER
Pursuant to Section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and Section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
the Department of Health and Human Services, Social Security
Administration shall:
1. Cease and desist from:
(a) Failing and refusing to bargain with American Federation of
Government Employees, AFL-CIO, the collective bargaining
representative of its employees, concerning any new settlement
projects in the EEO program, concerning the procedures to be
observed in implementing any such new program and over appropriate
arrangements for any employees adversely affectedly by any such
new program.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of their
rights assured by the Federal Service Labor-Management Relations
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Upon request of American Federaion of Government Employees,
AFL-CIO, the collective bargaining representative of its
employees, repeal the EEO Early Settlement Demonstration Project
in the Baltimore-Washington area and bargain with American
Federation of Government Employees, AFL-CIO, concerning
appropriate arrangements for any employees who had been adversely
affected by the institution of the "EEO Early Settlement
Demonstration Project."
(b) Upon request bargain with American Federation of Government
Employees, AFL-CIO, about any new settlement programs in the EEO
program, concerning the procedures to be observed in implementing
any such new programs and over appropriate arrangements for any
employees adversely affected by any such new program.
(c) Post in its Baltimore-Washingtion area facilities copies of
the attached Notice on forms to be furnished by the Federal Labor
Relations Authority. Upon receipt of such forms, they shall be
signed by a responsible official, and shall be posted and
maintained for 60 consecutive days thereafter, in conspicuous
places, including all bulletin boards and other places where
notices to employees are customarily posted. Reasonable steps
shall be taken to ensure that such Notices are not altered,
defaced, or covered by any other material.
(d) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region III, Federal
Labor Relations Authority, in writing, within 30 days from the
date of this Order, as to what steps have been taken to comply
herewith.
/s/ SAMUEL A. CHAITOVITZ
Administrative Law Judge
Dated: October 10, 1986
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) Chairman Calhoun dissents for the reasons stated in his separate
opinion.
(2) Portsmouth Naval Shipyard and Department of the Navy (Washington,
D.C.), 23 FLRA No. 68 (1986).
(3) Section 7103(a)(14) provides, in pertinent part:
(14) "conditions of employment" means personnel policies,
practices, and matters, whether established by rule, regulation,
or otherwise, affecting working conditions . . .
(4) I note that the Agency's March 6, 1985, letter to the Union
solicited input concerning the ESDP project. The Union demanded
bargaining. While I do not find a duty to bargain in this case, I do
applaud the Agency's apparent willingness to confer with the Union on
the subject. The action evidences recognition of the desirability of
bilateral discussions and comports favorably with the provisions of 5
U.S.C. Section 7113(b) concerning national consultation rights.
(5) Hereinafter called the ESDP.
(6) There are no time frames built into this the ESDP.
(7) Article 18, Section 5B of the parties' negotiated agreement
provides as follows:
An employee has the option of filing a complaint under the negotiated
grievance procedure (Article 24) or under the agency EEO complaint
procedure, but not both.
(8) 42 U.S.C. 2000(e) et seq. Hereinafter referred to as the Civil
Rights Act.
(9) 29 CRF Part 1613.
(10) 29 CFR Part 1613.211 through 222.
(11) Enforced as to other matters sub nom. Department of Defense v.
FLRA, 659 F2d. 1140 (D.C. Cir. 1981), cert. denied sub nom. Aamerican
Federation of Government Employees v. FLRA, 455 U.S. 945 (1982).
(12) SSA cited and relied upon Internal Revenue Service, Fresno,
California v. FLRA, 706 F.2d 1019 (9th Cir. 1983); General Printing
Office, 17 FLRA 254 (1985); SSA and SSA Field Operations, New York
Region, 16 FLRA 1021 (1984); Harry S. Truman Memorial Veterans
Hospital, Columbia, MO, 16 FLRA 1049 (1984).
(13) If the FLRA were to determine that there is no bargaining
obligation concerning the substance of the ESDP, I would conclude its
impact would be more than de minimis. Thus I note it is a mandatory
procedure applicable to all SSA employees, including unit employees, in
the Baltimore-Washington area, who invoke SSA's EEO complaint procedure.
It's foreseeable impact involve the lack of time limits in the ESDP,
the rights of employees to representation during the ESDP, the use that
could be made of any statements or evidence obtained during the ESDP,
etc. These clearly are of concern to employees and are more than de
minimis.
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail and refuse to bargain with American Federation of
Government Employees, AFL-CIO, the collective bargaining representativ